Moran v. Brown

• Decision Date: 25 October 1887
• Parties: MARTIN MORAN, Respondent, v. SAMUEL S. BROWN, Appellant.
• Court: Missouri Court of Appeals

27 Mo.App. 487

MARTIN MORAN, Respondent, v. SAMUEL S. BROWN, Appellant.

Court of Appeals of Missouri, St. Louis.

October 25, 1887

APPEAL from the St. Louis Circuit Court, Daniel DILLON, Judge.

Reversed.

H. A CLOVER, for the appellant: The servant takes the risk of the negligence, recklessness, or misconduct of his fellow-servant, the use of the material and implements furnished, and their failure from latent defects not revealed by practical tests, and from deterioration by the usual wear and tear. Laning v. Railroad, 49 N.Y. 521; 2 Thompson on Negligence, 940; Warner v. Railroad, 39 N.Y. 469. Where the plaintiff's evidence is equally consistent with the absence as with the existence of negligence in the defendant, the court will not be justified in leaving the case to the jury. Cotton v. Wood, 8 C. B. (N. S.) 568; Allen v. New Gas Co., 1 Exch. Div. 254; Bartonshill Coal Co. v. Reid, 4 Jur (N. S.) 767; Lovegrove v. Railroad, 16 C. B. (N. S.) 692; s. c. 33 L. J. C. P. 329; Feltham v. England, L. R. 2 Q. B. 33.

A. R TAYLOR, for the respondent: It is the duty of the master to inspect the implement from time to time to ascertain its condition of repair, and, although the servant may have equal means of discovering a defect as the master, yet if he does not so discover the defect, and the master could do so by the exercise of ordinary care, the injured servant has redress. Dedrick v. Railroad, 21 Mo.App. 436; Porter v. Railroad, 71 Mo. 79; s. c. 60 Mo. 162, followed and approved in Waldhier v. Railroad, 87 Mo. 48. The inquiry in all such cases is, was the servant seeking to serve his master, to carry out his purpose? If he was, the master is responsible not only for his negligent acts, but even for his wanton act to accomplish his master's purpose in an unlawful manner. Howe v. Newark, 12 Allen 49; Garretzen v. Duenckel, 50 Mo. 104; Schmidt v. Adams, 18 Mo.App. 435 But suppose it be urged, as it is in the appellant's brief, that the servant was negligent in the use of the axe, and that such negligent use of the axe contributed to cause the injury, yet this state of facts does not defeat the plaintiff's recovery, for it is well settled that, if the master's negligence and a fellow-servant's negligence jointly cause the injury to the servant, the master is liable. McMahan v. Henning, 3 F. 353, and cases cited.

OPINION

THOMPSON J.

This is an action for damages for negligence. The negligence stated in the petition is, that the plaintiff, while at work as an employe of the defendant, was injured in consequence of the breaking of the helve of an axe in the hands of another servant of the defendant, the helve being in a defective and rotten condition, which fact was known to the defendant, or might have been discovered by him by the exercise of ordinary care. It is thus seen that the negligence upon which the action is predicated is the failure of the defendant to exercise reasonable care in providing an axe with a safe and good helve, instead of providing one with a rotten and defective one.

The plaintiff's evidence tended to show that the plaintiff, at the time of the accident, was working for the defendant as a coal-heaver; that coal was being transferred by means of a car upon a railway, the rails of which were made of iron; that one McNeely, another servant of the defendant, conceiving that one of the rails of the railway was out of place, went to the tool-chest and got the axe for the purpose of driving the rail back; that he struck the rail four or five powerful blows with the axe, when the helve broke and the head of the axe flew and struck the plaintiff (he not being guilty of any contributory fault), inflicting upon him a grievous physical injury. The case was submitted to a jury, who returned a verdict in favor of the plaintiff for the sum of eighteen hundred dollars damages. This award of damages is not complained of as excessive; the plaintiff is undoubtedly entitled to much sympathy.

But we discover in the record no evidence of negligence on the part of the defendant, such as, in the state of the law, authorized the court to submit the case to the jury.

I. There is no evidence in the record that the plaintiff's fellow-servant, McNeely, was, at the time, or ever had been authorized or required to drive the iron rail in its fastening, as he was doing at the time of the...